A forum for associates to speak out about law firm issues

Recently, I’ve received a number of queries such as “Why are there no new posts recently?” “Can you post more entries?” Well, after being on the road, I’m now back. By the way, I have also set up a new e-mail account so that readers can ask questions privately or contact me directly. It’s associatespeak@gmail.com. I will do my best to respond to e-mails within a few days unless I am traveling.

Speaking of travels, I thought this might be a good time to discuss the remote office. If you’re currently an associate working at Biglaw, you probably are familiar with Citrix or some equivalent meta-frame software that allows you to access your work computer from home. Whether you use a work laptop that locks into a work station, or a desktop computer at work that you’d like to access when you are at home or elsewhere, Citrix gives you the flexibility of accessing not only the documents saved on your work computer but the firm’s server. It’s designed to ensure that whatever you see on your screen at work can also appear on your screen at home.

I’ve heard the argument that lawyers want to leave their work where it belongs; namely, at work. When they go home, the last thing they want to do is log in and have the “freedom” to do more work at home. That makes sense when you work a normal 9 to 6 job. Do your work at work, and go home and relax.

But what happens if you have to work late? If there’s a brief that needs to be prepared and you’re working up against a real deadline? Do you really want to be at the office at 2 a.m.? If you have to work, wouldn’t it be much better to prepare that motion while in your comfy PJs?

This week, we’ll explore the advantages and disadvantages of the remote office, and how it can be used to provide you with a lifestyle option that is at least partially within your control.

Yesterday, along with millions of Americans, I was sitting at home watching the Superbowl. At halftime, the score was 10-6 in favor of the Colts. It had been a decent first half to watch, with spot-on lasers fired by both Peyton Manning and Drew Brees. But it was just good solid football played at the highest level. No major mistakes by either team, no huge penalties at the worst possible time, no interceptions or fumbles or spectacular kickoff returns. Just x’s and o’s executed to perfection.

As kicker Thomas Morstead got ready to kick to the Colts to start the second half, I was reaching for the chips and salsa. I never made it. My hand remained frozen in the air as, to my utter surprise, Morstead executes a perfect on-side kick, the football bounces off Indy receiver Hank Baskett, and the Saints recover in a mad pile-up.

Wow. Talk about a game-changer. The Saints capitalized on the stunned Colts, whose defense was certainly not prepared to be on the field to start the second half, marching 60 or so yards for a touchdown and the first Saints lead of the game. Instead of Manning being on the field leading his team to what would have likely been a 17-6 lead (insurmountable from the perspective of Super Bowl history, where the greatest deficit overcome was 10 points), instead the Saints were now ahead 13-10.

Sure, it was risky, but it was a calculated risk. An onside kick had never been attempted prior to the fourth quarter in any Super Bowl, and it was just not what the Colts’ receiving unit was expecting. The element of surprise (or shock) can sometimes pay huge dividends.

What game changers do lawyers employ on the legal gridiron to shift momentum in their direction? In litigation, which presents a natural adversarial environment, it’s easy to draw comparisons. Depositions afford counsel with the opportunity to make odd requests or crazy objections simply to try to rattle the other side–sometimes even before the deposition begins. Threats to leave the deposition or call a judge often work to intimidate the other side. Lengthy or numerous objections work to disrupt the flow of questioning.

These tactics carry risk, of course. They can backfire, for example, if opposing counsel calls your bluff and you aren’t in fact ready to walk out of the deposition or call a judge (or don’t have a valid basis for doing so). Lawyers constantly push the envelope in order to maintain the element of surprise, but sometimes such behavior violate ethics or rules of professional conduct. At times, lawyers get away with it, but be prepared for the consequences if the other side responds.

Game changers can be a powerful tool when used properly. They can alter the dynamics of a legal battle, and shift momentum in the eyes of the judge.

What game changers have you attempted? Did such a game changer affect the course of litigation? For those of you in the corporate law world, what types of game changers exist?

Yesterday, I dined at a restaurant in San Francisco. Generally, this would not be news worthy, nor would it be relevant to a website devoted to law firm issues. Except for the fact that this was no ordinary restaurant. It was a dining establishment in the basement of another restaurant in a windowless room with no lights. Yes, you heard correctly. There were no lights and no windows. The entire restaurant was pitch black. All the waiters and waitresses were blind. Our waitress, Courtney, guided us to our table by forming a human train, with Courtney leading the way.

My first reaction was, holy shit, it really is dark. Duh. But let me clarify. There’s dark, and then there’s dark. Most of us are accustomed to darkness when we go to sleep at night and turn off the lights. But there’s always some sort of ambient light filtering through a window. Moonlight, street lights, the occasional sweep of headlights from a passing car. Usually, you can still make out faint outlines of objects, furniture, something. In other words, you can still see.

Not here. This darkness was the blackest, craziest “I’m in a friggin’ black hole” kind of darkness. The true absence of light. Light sucked out completely, never to return. Okay, perhaps I’m being a little dramatic, but that really was how it appeared. I couldn’t see anything. I had no concept of how small or large the room was, how high the ceilings were, or how many tables were there. I put my hand up to my face, two inches from my eyes. Nothing. I waved my hand in front of my face. Nothing.

On top of the pitch blackness, once we had been seated, I realized that there was no sound either. No ambient noise–no music, no conversation from other diners, not even the sound of a heating vent. It was absolutely silent.

This was really disturbing. My first instinct was to get up and run out. But of course I couldn’t. I had no idea where the hell I was. The darkness and silence were overwhelming, oppressive, threatening to crush me. I was used to seeing and hearing things. Take those away from me suddenly, and I felt helpless. I could sense panic rising at an alarming rate.

So how is this related to Biglaw? Of course, I’m not suggesting that partners use sensory deprivation as a method to torture associates. But, associates do experience moments of panic, especially early on, that are not dissimilar to what I felt at this restaurant.

Consider an associate asked to take a deposition after only a few months out of law school. Or asked to go to court alone to face a peevish judge and opposing counsel who has a reputation for making mincemeat out of his opponents. The natural reaction is this: PANIC. The thoughts running through your head are probably, in no particular order: What the hell do I do? Am I ready for this? I have no clue what I’m doing! What if I royally fuck this up? The partner will kill me if I screw up! I’m going to get fired, I know it. This is the end!

What causes this panic? It’s the same cause for my panic in the restaurant: being thrown into a foreign environment suddenly. I wasn’t prepared for the darkness, and didn’t know how to deal with it. Associates aren’t prepared to take their first deposition or argue their first motion, and they don’t know how to handle them properly.

This is why, despite all the desire by first year associates for such “early responsibility,” it’s important to first get the proper training. Courtney, the blind waitress, wasn’t going to panic. She’s blind, after all, so she understands the environment and knows how to operate, even flourish, under such conditions. Similarly, partners won’t panic about a deposition or a court hearing. They’ve done it before, have accumulated the experiences, and know how to succeed under these conditions. The key is to prepare yourself for doing something that you’ve never done before. That’s why training and mentoring are so important early on in your career development.

It turned out that there was no ambient sound because we were the first to arrive at the restaurant. Shortly thereafter, music started playing and other tables were filled around us. I got used to the total darkness after a while, and figured out how to eat an entire three-course meal, complete with amuse bouche and other culinary surprises, without spilling anything. At the end, I thoroughly enjoyed the experience and even got to listen to a blind waitress recite her own poetry in the dark. Surreal.

So, find yourself a mentor to show you the way. Don’t stumble in the darkness all by yourself.

If you are a mid-level or senior associate, it’s very likely that you’ve been asked by the recruiting department at your law firm to interview prospective summer or lateral associates. Most of these will be “second round” or “final round” interviews, not done on campus at law schools, but instead at the firm’s office. More like a mini-series of interviews that conclude with lunch, these interviews give you, the interviewer, twenty minutes or half hour with the candidate before they get shuttled to the next office.

One of the standard questions asked during these interviews is, “So why are you interested in our firm?” Candidates give a variety of responses, including the type of work offered, a particular partner they want to work for, etc. But a common thread in the response is some mention of “early responsibility.” New associates crave early responsibility the way a drowning man craves oxygen. They clamor for it, they know from talking to classmates at law school that it’s important to get it, they understand that it will help them develop as lawyers, so they keep repeating it: “I want early responsibility. I want early responsibility. I want early responsibility.” This phrase is repeated about six or seven times per interview — one time per 20 or 30 minute slot — multiplied by ten or more interviews at various firms. So by the time the candidate reaches your desk, he or she may very well have repeated this mantra fifty or a hundred times–so many times that you wonder whether the words really mean anything at that point.

Of course, if candidates believe that your firm offers early responsibility–whatever that means–who are you to tell them otherwise? “Of course we do,” you say (as you roll your eyes). You’re secretly wondering: do they even know what the hell they are asking for? You wonder this because, as a mid-level to senior associate, you had once prayed to the gods of early responsibility as well, and know that it wasn’t what you expected.

Here’s the secret, for all you junior associates out there reading this: early responsibility means doing stuff that is WAY out of your comfort zone. If you’ve never been to court, and you want to argue a motion before a judge, that’s great–but do you have any idea of how to go about doing that? Do you know how to make an appearance, whether you need to file anything prior to the appearance, give notice to opposing counsel, pay any court fees, get permission from the court if you are bringing presentation materials in the courtroom? Like you learned in law school, the answer is, “It depends.” Every situation is different, and only experience or guidance will allow you to navigate these tricky waters without either (1) violating a court rule and seriously pissing off the judge; (2) making a fool out of yourself and losing what little credibility you may have had with opposing counsel; (3) committing legal malpractice.

The point is this: you may want early responsibility, but make sure you really want it. Make sure you know what it means to get real early responsibility (see the last post, “Two ships passing in the night” for what pseudo early responsibility is). Make sure you are willing to flop like a fish out of water, gasp for air, and barely make it back to the ocean. If that’s not your cup of tea, you may want to reconsider saying “I want early responsibility.”

During on-campus interviews, an exchange between partner/recruiter and law student can be overheard. It happens during OCI season all over the country. All such exchanges involve the promise of early responsibility, and while there are variations upon a theme, the conversation generally goes like this:

Partner / recruiter: What sets our firm apart is that we offer early responsibility to associates.

Law student: That’s fantastic, because I am really looking for a firm that allows me the opportunity to take ownership of things and run with it.

Partner / recruiter: Well, that’s exactly our firm philosophy. We love to give you as much responsibility as you want. It’s what sets us apart from other firms.

Beautiful. Everyone is on the same page. The partner and the law student smile at each other, shake hands, an offer is extended, and the law student accepts. It’s the beginning of a beautiful friendship.

Or is it?

Ignoring the fact that every law firm thinks they are unique in offering early responsibility to new lawyers (if they really all did so, how is it then unique?), let’s dissect what the partner and law student were really saying and see if they were on the same page. Here’s the same exchange, except now with translations:

Partner / recruiter: What sets our firm apart is that we offer early responsibility to associates. TRANSLATION: Our firm is unique. We allow our first years to be responsible for really important document review and legal research. We let them draft their own legal memorandums. Of course, a senior associate will have to review it first and mark it up before the partner reads it, but they get to write the first draft themselves. If they are really good, we even let them carry our briefcases to court. I mean, that’s real responsibility right there — imagine what would happen if the first year lost all the oral argument notes?

Law student: That’s fantastic, because I am really looking for a firm that allows me the opportunity to take ownership of things and run with it. TRANSLATION: What you say sounds exactly what I want. I am so excited to find a firm that entrusts me with direct client contact, witness interviews, and phone calls to opposing counsel.I am stoked that, unlike at other firms, I’ll be able to prepare substantive legal briefs, sign my own name to them, and go to court to defend my arguments. I’m going to be a real lawyer!

Partner / recruiter: Well, that’s exactly our firm philosophy. We love to give you as much responsibility as you want. TRANSLATION: So glad to hear that we are on the same page! We love to give you as much legal research and document review assignments as you want. Take ownership of those boxes of documents and go for it!

Sadly, the partner/recruiter and law student might as well have been two ships passing each other at night. They are simply talking past each other. It’s not that the law firms are intentionally lying to law students; it’s just that each side has completely different expectations and ideas for what “early responsibility” really entails.

Do you remember your OCI experience? What did law firms promise you? Were those promises fulfilled? If not, was it due to differing expectations, or do you feel lied to?

ABC has a new law show that premiered last Thursday called ‘The Deep End.” Set in Los Angeles, the show tracks a group of young, twenty-somethings who would do better having modeling careers than acting out the parts of associates at a law firm. The title, “The Deep End,” apparently comes from the notion that first year associates are pushed into the deep end right away: we see these first years going to court, arguing motions, appearing at settlement conferences, and holding client meetings with no partner supervision. All of this is represented symbolically when the lead character, Dylan, is pushed into a swimming pool wearing a full suit.

The theme for this week’s posts is responsibility. As a first year, do you really want it?

One camp includes those associates who clamor for early responsibility. They are itching to get to court, to meet clients, to take their first deposition, to argue with opposing counsel.

The other camp includes associates who are petrified with the idea of being pushed into the deep end. These associates want to ramp up slowly, starting with the familiar territories of legal research and memo writing. They want to observe partners in action to see how it’s done before they venture into dark waters.

Is there a right or wrong? Are associates in the first camp “go-getters” on the fast track to partnership? Or are they risk-taking idiots setting themselves up for an early fall? Are associates in the second camp smart to first figure things out in order to build a pristine reputation? Or will they be viewed as work horses only to be used for document review and other bottom-feeder projects?

Bonus season has an unintended effect when associates wait until they’ve collected the annual bonus before giving their two-week notice. If you are an associate planning to stick around, how does this affect you?

A lot of case assignment and re-assignment occurs during the months of January and February. This is not mere coincidence. When associates leave, the firm needs people to fill those places. Sometimes, case staffing gets rearranged entirely, with a lot of behind-the-scenes angling by partners who try to retain their favorite talent.

As someone who plans to stay, you need to be alert of what’s happening around you. First, if you’re happy about the cases that you are currently working on, then try to find out if any rearranging will affect you. This has to be done through the grapevine. Usually, senior associates are more plugged in to what the partners are doing, so try to find out from them.

Second, if you are not currently happy about one or more cases, this might be a great opportunity to try to get switched off a case without offending the partner that you are currently working for. This works especially well if you happen to know that one of your fellow associates is planning to leave and is working on a sexy case that you’ve been eyeing for the past few months. Have him or her get you knowledgeable and “up to speed” on the case informally, and put in a good word for you when s/he has officially given notice and needs to transition the case. This guarantees that you’re a step ahead of anyone else. It makes you attractive because partners hate to write off time to get a new associate informed about a new case. And the former partner with the decidedly un-sexy case? He or she is generally more understanding that re-assignments occur during bonus season.

Third, if you don’t have enough work (a realistic position to be in given the continued deplorable state of the economy), look at this as a chance to get more work. It always helps when you have insider’s knowledge of an imminent associate departure. A lot of associates won’t even tell fellow associates until they’ve officially given notice, knowing how quickly work can spread and not wanting the partnership to know prematurely. But if you’ve gained someone’s trust, you’ll likely know ahead of everyone else. Use that to your advantage if you don’t have enough work and want to inherit the case.